The SEC’s Division of Economic and Risk Analysis (DERA) recently produced a Report to Congress regarding the impacts of the Dodd-Frank Act on access to capital for consumers, investors, and businesses, and market liquidity.  Although the Report is principally focused on liquidity, it does provide some interesting statistics regarding the primary issuance of equity securities.

The Report notes that total capital formation from 2010 when the Dodd-Frank Act was enacted through year-end 2016 was approximately $20.2 trillion, of which $8.8 trillion was raised through registered offerings, and $11.38 trillion was raised in exempt offerings.  The report notes the substantial increase in reliance on exempt offerings.  Regulation D offerings have more than doubled since 2009.  However, the report notes that the amount sold in reliance on Rule 506(c) represented only 3% of the amount sold in reliance on Rule 506.  The average amounts raised in initial Rule 506(c) offerings is much smaller than the average amount reported sold in  Rule 506(b) offerings.  Rule 144A issuances remain stable.

The Report also provides data regarding Regulation A and crowdfunded offerings, and may be accessed here:  https://www.sec.gov/files/access-to-capital-and-market-liquidity-study-dera-2017.pdf.

In our Practising Law Institute treatise Exempt and Hybrid Securities Offerings, we refer to the concept of “integration” under the securities law as a bogeyman of sorts for practitioners. In this day and age of tweets and posts, and where public and “private” offerings are hard to distinguish from one another, is the concept of integration antiquated? Or is it perhaps due for a comprehensive re-examination by the Securities and Exchange Commission? As we discuss below, many of the fundamental principles of integration of offerings, aggregation of offerings for purposes of securities exchange rules, and communications issues like “gun-jumping” and “quiet periods” may have been so eroded as to no longer be meaningful.

To view our article, click here.

This article has been published in The Current: The Journal of PLI Press, Vol. 1, No. 1, Summer 2017 (© 2017 Practising Law Institute).

July 13 – 14, 2017

PLI New York Center
1177 Avenue of the Americas
(2nd Floor)
New York, NY 10036

PLI’s Understanding the Securities Laws 2017 conference will provide an overview and discussion of the basic aspects of the U.S. federal securities laws by leading in-house and law firm practitioners as well as SEC staff. Emphasis will be placed on the interplay among the Securities Act of 1933, the Securities Exchange Act of 1934, the Sarbanes-Oxley Act, the Dodd-Frank Act, the JOBS Act, the securities related provisions of the FAST Act, related SEC regulations and significant legislative and regulatory changes and proposals made in the wake of the 2016 election.

Morrison & Foerster Partner Anna Pinedo will lead a session entitled “Securities Act Exemptions” on Day One of the program. Topics will include:

  • Exempt securities versus exempt transactions;
  • Private placements, including  offerings under Rules 504 and 506 of Regulation D;
  • Regulation A+ offerings;
  • “Intrastate” offerings, including new Rule 147A ;
  • Crowdfunding;
  • Employee equity awards;
  • Rule 144A offerings;
  • Regulation S offerings to “non-U.S. persons”; and
  • Resales of restricted and controlled securities:  Rule 144, Section 4(a)(7) and 4(a)(1½).

PLI will provide CLE credit.

For more information, or to register, please click here.

May 22 – 23, 2017

PLI New York Center
1177 Avenue of the Americas
(2nd Floor)
New York, NY 10036

PLI’s Private Placements and Hybrid Securities Offerings 2017 conference is designed for corporate and securities attorneys, compliance professionals, control room personnel, bankers and allied professionals who deal with private placements and other exempt and hybrid offerings. The faculty will address the changes to private and exempt offerings brought about by the JOBS Act, including matchmaking platforms, “accredited investor” crowdfunding, offerings using general solicitation, Rule 144A offerings, and the practical implications of these changes for issuers, broker-dealers and investment advisers. In addition, the faculty will address the basics of private placements, sales of restricted securities, Rule 144 and Section 4(a)(1-1/2) transactions and block trades. The panelists will discuss the considerations that have led many companies to remain private longer and defer IPOs, while creating liquidity opportunities for holders through private secondary trading markets. Panelists will address the basics of traditional private placements, PIPE transactions, and Rule 144A transactions, as well as recent developments affecting each of these capital raising alternatives.

Partner Anna Pinedo will serve as chairperson for this event and will speak on the “Welcome and Introduction to Private Placements and Hybrid Financings” panel on Day One of the conference and on the “Welcome and Introduction to Conducting Hybrid Offerings” panel on Day Two. Senior Of Counsel Marty Dunn will speak on the “Overview of 4(a)(2) and Regulation D” panel on Day One.

To register for this conference, or for more information, please click here.

On March 31, 2017, the SEC Staff published five Compliance and Disclosure Interpretations (C&DIs) relating to Regulation A.  These address an issuer’s ability to use Form 8-A to register securities under the Exchange Act concurrent with completion of a Tier 2 Regulation A offering; the suspension of Tier 2 reporting obligations in the case of a withdrawn offering; the age of required financial statements for a Tier 2 offering; the requirement to file a tax opinion as an exhibit to Form 1-A;  the inclusion of an auditor’s consent to use an audit report included in a Form 1-K annual report as an exhibit to the Form 1-K; and the application of Item 19.D of Guide 5 to Regulation A offering sales materials.

See the full set of C&DIs here: https://media2.mofo.com/documents/170403-reg-a-cdis-cmg.pdf

On February 28, 2017, the SEC issued an order (the “Order”) temporarily suspending the ability of Web Debt Solutions, LLC (“Web Debt”) to utilize Regulation A, pursuant to its authority under Securities Act Rule 258. The Order stems from untrue statements of material fact made in Web Debt’s offering statement on Form 1-A, which was filed with the SEC on July 11, 2016 (the “Offering Statement”). The SEC specifically noted that the Offering Statement: (i) contained inconsistent, contradictory balance statements regarding Web Debt’s total assets in 2016; (ii) included erroneous statements that Web Debt’s chief executive officer had 15 years of experience in the debt collection industry prior to forming Web Debt; and (iii) listed as the address of Web Debt’s principal office, a building that, as of the date of the Order, was currently under construction and without any businesses operating from it. The SEC also noted that Web Debt’s chief executive officer had failed to fully cooperate with the SEC’s investigation, including failing to: (i) produce, in response to a voluntary document request, any documentation related to Web Debt by a stipulated deadline; and (ii) respond to subsequent communications from the SEC regarding the voluntary document request.

A copy of the Order is available at: https://www.sec.gov/litigation/admin/2017/33-10316-order.pdf

At the 35th Annual Federal Securities Institute, a representative of the Securities and Exchange Commission shared some market data.

From its effective date in June 2015 through December 2016, there were 171 Regulation A offerings filed. Of these, 76 were Tier 1 offerings and 95 were Tier 2 offerings. The aggregate proceeds sought to be raised in the filed deals was approximately $3 billion. There were 97 offerings qualified. Thus far, $238 million has been reported sold, though more complete data will be available when issuers file their reports in a few months.

From its May 2016 effective date, 163 companies have filed to undertake crowdfunded offerings. The average minimum raise sought is $100,000 and the average maximum raise is $647,000. The average time period has been between four and six months. 28 deals have been completed raising approximately $8.1 milllion. 24 issuers failed to meet the minimum amount sought and withdrew their offerings.

The Division of Economic and Risk Analysis (DERA) of the Securities and Exchange Commission published a study recently that reviews, among other things, the performance of and the returns of investing in OTC stocks.  The study notes that there have been many studies and there is a wealth of data relating to the performance of NYSE- and Nasdaq-listed securities.  These securities tend to be held principally by institutional investors.  By contrast, there has been less analysis undertaken relating to OTC stocks, which tend to be held principally by retail investors.  While the data and analysis included in the study is on its own quite interesting, we find it particularly relevant in light of the many calls for the establishment of a venture exchange.   The Financial CHOICE Act, for example, includes among its many provisions, a section that relates to the establishment of venture exchanges.  The analysis also is relevant in evaluating whether the OTC markets provide a useful market for the securities of companies that undertake Regulation A offerings.

The study confirms that OTC stocks are less liquid than those listed on national securities exchanges.  The study also confirms a correlation between the availability of information about listed companies and their liquidity—with greater liquidity seen for those companies as to which public disclosures are available.  The study seems to indicate that the returns of OTC stocks are typically negative and that often these stocks are subject to alleged market manipulation efforts.  The study notes that “up-listing,” or moving from the OTC markets to a national securities exchange is quite uncommon, with fewer than 9% of companies transitioning during the study period (2001 to 2010) and less than 1% from the Pink Sheets (now OTC Markets) to a national securities exchange.

The study is available here:  https://www.sec.gov/dera/staff-papers/white-papers/White_OutcomesOTCinvesting.pdf.

On December 7, 2016, the SEC released a white paper on Regulation A+ offerings titled “Regulation A+: What Do We Know So Far?”  The white paper analyzes Regulation A+ offerings conducted from the effective date of Regulation A+ (June 19, 2015) through October 31, 2016.  The white paper notes that during this observation period the rate of Regulation A+ activity outpaced the rate of prior Regulation A activity.  Despite a relatively small sample size and a short observation period, the white paper makes, among others, the following observations:

  • Prospective issuers filed with the SEC offering statements for 147 Regulation A+ offerings, covering approximately $2.6 billion of securities.  Of those offering statements filed with the SEC, approximately 81, covering approximately $1.5 billion of securities, have been qualified by the SEC.
  • $190 million was reported as raised in qualified offerings.
  • With respect to qualified offerings, there were 10 issuers seeking quotation on the OTC Markets, 17 issuers indicating that they would seek quotation on the OTC Markets in the future and one issuer seeking an NYSE listing (no issuers indicated they were seeking a Nasdaq listing).
  • Issuers are availing themselves of both Tier 1 and Tier 2 offerings, but Tier 2 offerings were on the margin more common among qualified offerings, accounting for 60% of qualified offerings.
  • The offering amount varied with issuer’s size, with the average issuer seeking up to approximately $18 million.
  • Issuers mainly offered equity securities, which accounted for over 85% of all Regulation A+ offerings.
  • The majority of Regulation A+ offerings were conducted on a best-efforts, self-underwritten basis.
  • Most of the issuers have previously engaged in private offerings, consistent with the use of Regulation A+ as an IPO on-ramp.

The white paper is available at: https://www.sec.gov/dera/staff-papers/white-papers/Knyazeva_RegulationA-.pdf.

On December 7, 2016, the North American Securities Administrators Association (“NASAA”) proposed a model rule, a model statutory amendment and a Solicitation of Interest Form permitting testing the waters in Tier 1 Regulation A offerings under the NASAA’s coordinated review program.  States are currently preempted from requiring registration for Tier 2 Regulation A offerings, including those using testing the waters, but are not preempted from requiring such registration for Tier 1 Regulation A offerings.  The proposed model rule allows an issuer that intends to register a Tier 1 Regulation A offering to solicit indications of interest from prospective investors if the following conditions are satisfied:

  • the issuer is organized under the laws of a state or territory of the United States, the District of Columbia or a province of Canada;
  • the issuer files a solicitation of interest form and any advertising materials with the administrator at least 15 calendar days prior to the initial solicitation of interest;
  • neither the issuer nor any person acting on its behalf may solicit or accept any money or subscriptions;
  • neither the issuer nor any person acting on its behalf may make any sales until at least seven calendar days after delivering a final offering circular; and
  • certain legends must appear in any solicitation of interest materials.

Certain offerings are disqualified under the proposed model rule, including those involving bad actors, development stage companies, blank check companies, companies involved in petroleum or other mining or extractive industries and pooled investment vehicles.  The proposed Solicitation of Interest Form, which contains basic information about the issuer and the offering, would be required to be filed with regulators prior to testing the waters and also must be provided to prospective investors.  Comments on the NASAA’s proposal are due by January 6, 2017.

The NASAA’s proposal is available at: http://nasaa.cdn.s3.amazonaws.com/wp-content/uploads/2016/12/Testing-the-Waters-Request-for-Public-Comment-December-2016.pdf.